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Court Holds That Deposits Would Be Hypothetical
A bankruptcy trustee may recover for the bankruptcy estate so-called “preferential transfers” – certain payments made by the debtor within 90 days before the commencement of a bankruptcy case. To prevail, the trustee must show (among other things) that the creditor received a greater amount as a result of the transfer in question than such creditor would have received in a hypothetical liquidation under Chapter 7, had the challenged transfer not occurred.
This test, set out in Section 547(b)(5) of the Bankruptcy Code, is referred to as the “greater amount” test. In Schoenmann v. Bank of the West (In re Tenderloin Health), 849 F.3d 1231 (9th Cir. 2017), the U.S. Court of Appeals for the Ninth Circuit considered whether a bankruptcy court may account for hypothetical preference actions within a hypothetical Chapter 7 liquidation when determining whether a debt payment made by a debtor to its secured lender meets the “greater amount” test, such that it could be avoided by the trustee. Answering in the affirmative, the court held that bankruptcy courts may permissibly engage in such “hypotheticals within hypotheticals” so long as the inquiry is factually warranted and is supported by appropriate evidence, and provided further that the hypothetical action would not contravene any other provision of the Bankruptcy Code.
The Facts
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.